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Three Scottish judges have lobbed a constitutional grenade onto an already bloody Brexit battlefield by ruling that Boris Johnson’s decision to suspend Britain’s parliament is unlawful. If the Queen has so far largely succeeded in staying out of matters Brexit, it will be much harder now.

The Queen exercises her royal prerogative on the advice of her ministers. But what happens if that advice proves to have been not just poorly judged, but actually unlawful?

The practical impact of the Scottish ruling isn’t yet clear. The judges elegantly dodged the problem of how to enforce their decision by deferring the question of what to do about it until the UK Supreme Court makes its own prorogation ruling, expected next week.

The issue turns not on whether the government has the right to suspend Parliament — it does. Indeed, last week a Scottish judge dismissed a petition brought by a group of more than 70 lawmakers that the prorogation was illegal, accepting the government’s rationale that it was a matter of “high policy” and political judgement.

Intention, however, matters. The Court of Session judges, overturning the previous ruling, punctured the government’s case, saying prorogation “would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive.” It then judged that circumventing Parliament was indeed the “true reason for the prorogation.”

High policy

Johnson argued — in the manner of a child playing truant ostensibly for the purposes of educational enrichment — that his government had closed down Parliament merely to ensure that a new legislative agenda, which is announced in the Queen’s Speech at the opening of a new parliamentary session, could be presented. So difficult was it to maintain that flimsy pretext that even his ministers had trouble sticking to the script.

The government’s evocation that proroguing was “high policy” would usually be the end of matters. That’s considered the granddaddy of the prerogative powers handed down from monarch to ministers, which let governments make decisions on everything from issuing passports to going to war without the need to seek parliamentary approval.

The courts, which have become increasingly activist over time in reviewing prerogative powers, have largely steered clear of ruling on high policy, but that may be changing. Constitutional scholar Paul Craig has been arguing in recent weeks that just because prorogation may fall under a prime minister’s discretionary authority doesn’t prevent the government from using it unlawfully.

The related argument that the courts would be intruding on political turf has also been dismissed. If the executive couldn’t be challenged on these grounds, it is being argued, then every text book, article and essay on constitutional law has missed this crucial qualification to the sovereignty of Parliament.

None of this may matter much if the UK Supreme Court doesn’t confirm the Scottish ruling. In that case, Johnson will be inclined to try to ignore it.

All daggers drawn

If the Supreme Court backs the Scottish judgement, though, it will be hard to swat aside. It would, for one thing, suggest that the queen has been improperly advised. In that case, some suggest prorogation would have to be annulled and lawmakers would head back to the House of Commons, no doubt with daggers drawn. Another possibility is that the Queen would be advised to issue a new proclamation setting out an earlier date for reconvening Parliament, a partial U-turn that both Johnson and the queen would find embarrassing.

Ironically, a ruling that prorogation is illegal might not change much practically. Johnson’s original aims with taking such a drastic step were thwarted largely when Parliament rejected his demand for an early election and also voted to force him to seek an extension to Brexit rather than leave without a deal on Oct. 31.

Disbanding Parliament still allows Johnson to use the pulpit of the prime minister’s office without being subject to a near daily verbal beating from MPs. If Parliament were recalled early, Johnson would suffer the embarrassment of having been shot down by the high courts and he’d also be confronted by a chamber whose scrutiny he’s tried desperately to avoid.

And yet Johnson would probably use the opportunity to drive home the “people versus Parliament” message that he intends to use in the inevitable forthcoming election. Having already gone full-metal populist, the painting of wigged lawyers and judges as part of an establishment dead set on thwarting Brexit isn’t much of a stretch. But with the courts now dragged in, the stakes just got higher.

— Bloomberg

Therese Raphael is a specialist on European politics and economics. She was previously with the Wall Street Journal Europe.